Board of County Com'rs of Prince George's County v. Oak Hill Farms, Inc.

• Decision Date: 01 September 1963
• Docket Number: No. 4,4
• Citation: 192 A.2d 761,232 Md. 274
• Parties: BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY, Maryland, Salvatore Donato, et al. v. OAK HILL FARMS, INCORPORATED. ,
• Court: Maryland Court of Appeals

Page 274

232 Md. 274

192 A.2d 761

BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY, Maryland, Salvatore Donato, et al. v. OAK HILL FARMS, INCORPORATED.

No. 4, Sept. Term, 1963.

Court of Appeals of Maryland.

July 12, 1963.

Hal C. B. Clagett, Upper Marlboro (Sasscer, Clagett & Powers, Upper Marlboro, on the brief), for Salvatore J. Donato, and others, appellants.

Russell W. Shipley, Upper Marlboro (Robert B. Mathias, Lionell M. Lockhart and Joseph S. Casula, Upper Marlboro, on the brief), for Bd. of County Commissioners for Prince George's County, appellant.

Blair H. Smith and Charles T. Finley, Mt. Rainier, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

The Circuit Court for Prince George's County reversed the action of the County Commissioners of that County, acting as a District Council, in refusing to rezone some twenty-one acres of land for use for high density apartments, and directed approval of the petitions which sought reclassification.

The County Commissioners and aggrieved neighbors have appealed, claiming that (a) there was evidence before the District Council upon which its decision not to rezone reasonably could have been based; (b) this being so, the court could reverse or modify the decision only 'if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions or decisions are * * * (6) against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency * * *,' to use the language of the applicable statute governing appeals, Ch. 780 of the Laws of 1959, Sec. 79(i)(6); ¹ and (c) the grant of power to the Circuit Court to weigh the evidence on which the District Council acted is an unconstitutional delegation of legislative police power to the judicial arm of the government.

The constitutional question here posed was raised as to the statute applicable to Prince George's County which preceded Sec. 79(i) of Ch. 780 of the Laws of 1959 (and was identical as to the seven grounds on which the Circuit Court could reverse or modify the action of the District Council) in Board of County Com'rs of Prince George's County v. Donohoe, 220 Md. 362, 371, 372, 152 A.2d 555, but was not decided because that case was remanded on another ground. The Donohoe opinion pointed out that there was nothing new or novel in the provision that reversal or modification could be predicated by the court on a finding that the Council's 'findings, inferences, conclusions, or decisions are * * * (5) unsupported by competent, material and substantial evidence in view of the entire record as submitted * * *' (or of the other reasons set out in Sec. 79(i) with the exception of the provision as to the weight of the evidence). ² Chief Judge Brune said for the Court:

'No question is raised as to the validity of the power of the court to reverse or remand for any of the grounds which we have numbered (1) to (5), inclusive, or (7). Even though Ch. 712 [of the Laws of 1957] contains no separability clause, we see no basis for striking down the statute as an entirety because of the alleged constitutional invalidity of ground (6) * * *. We find no reason to suppose that the General Assembly would not have enacted the unchallenged provisions of the Act even if those which are attacked should be declared invalid, nor do we find the challenged provisions to be inseparably connected with those which are concededly valid.'

The provisions of Sec. 79(i) were referred to, but not construed, in Board of County Commissioners v. Walcroft, 224 Md. 610, 168 A.2d 892.

In the view we take of the present appeal, again we do not need to determine the validity of the legislative grant to the court of the power to weigh the evidence before the District Council. We think the 'findings, inferences, conclusions or decisions' of the Council were 'unsupported by competent, material and substantial evidence in view of the entire record * * *.'

The land here in question is but a short distance from the District of Columbia line on the south side of Naylor Road at its intersection with Branch Avenue (Maryland Route 5). The land was originally zoned rural residential. In 1949, with the adoption of the 1949 Zoning Map, a parcel fronting on Naylor Road was zoned C-1 (local commercial). In 1950 the remainder of the twenty-one acres was changed to R-18 (multiple family, medium density residential) zoning. Thereafter, the Maryland-National Capital Park and Planning Commission initiated proceedings to reclassify the land, other than the C-1 part, to R-35 (semi-detached residential), and it was so rezoned. None of the land has been developed or built on. The land slopes upward to the west from Branch Avenue to a ridge line which once was the peak of a very high hill from which thousands of tons of gravel and sand have been removed. The elevation is still high in relation to abutting and surrounding properties. Other parts of the tract also are high, the whole area being composed of steep hills and high rolling terrain.

Along both Branch Avenue and Naylor Road the land is zoned C-1 and C-2 (general commercial), and is so utilized, with R-35 zoning to the southeast, R-55 to the south, R-18 to the west, and R-55 to the northwest.

There have been many changes to commercial zoning, and actual commercial uses, in the neighborhood since the last comprehensive zoning plan was adopted in 1949. There are some one hundred thirty-five acres of commercially zoned land in the area surrounding the land here involved. These marked changes in the neighborhood are expressly conceded by the appellants.

The Council had before it the report of the technical staff of the Planning Commission which recommended denial of the requested rezoning because a tentative master plan for the area, which the staff had prepared but which had not been adopted (and never was adopted, as proposed), did not contemplate the use of the land for intense residential development. The Planning Commission rejected the staff recommendation and reported unanimously to the Council that it believed 'that the reclassification of the subject properties to the R-10 zone would provide the best possible use of these properties,' that, in its opinion, a mistake had been made in last rezoning the land along Naylor Road to commercial and the rest of the land to R-35, and that it had been 'compelled to the conclusion that the rezoning of the properties in question to the R-10 zone would have a tendency to stabilize the area and make for better land use.'

The applicants produced a number of acknowledged experts whose testimony was that there had been many material changes since the original zoning in 1949, that there was a strong need for high density land use to meet demand for housing facilities and to provide needed customers for the many adjacent and nearby commercial establishments, that the great impracticability of using the land either for commercial use or for R-35 housing was manifest because of the nature of the terrain and the tremendous cost of removing dirt to permit construction which could be justified and supported financially only by high density residential use of the land as levelled, and that there was a real improbability, if not impossibility, of financing R-35 housing on the property. In sum, the opinion of the experts, unchallenged by any probative testimony, was that the best (and the only feasible) use of the land was for high rise apartments and that this use would be in harmony with the present character and planned future of the neighboring area and would not deteriorate the value of adjacent or nearby homes or otherwise adversely affect the welfare, health, or safety of the community.

The protestants did not wish apartments built because the country-like atmosphere they had sought and enjoyed would be spoiled, and for aesthetic reasons. They supported their objections by arguing that overcrowding of schools would result if the apartments were built, roads would be congested and water and sewage problems compounded. These rationalizations, on attempted factual grounds, of the very natural objections of homeowners to the depressing effects of the inevitable push towards a place to live of a vestly increased population, were completely rebutted by the facts brought out by the experts. (For example, the expert answer, proved by experience, to the school overcrowding argument was that the proposed 'high rise' apartments would add 104 children to the school population, while the number of school children in R-35 homes would be 205.)

Judge Loveless found that 'the technical staff report has no real merit in opposing the rezoning * * *' and that the testimony offered by the protesting neighbors amounted only to unsupported conclusions which he characterized, we think not inaccurately, as 'opposition without evidence.' He said: 'On the other hand, the petitioners presented testimony of acknowledged experts on land use, planning and development. The conclusions of the opposition as to roads, traffic, schools and property values were completely rebutted by these experts with studies, surveys, examples * * *.'

He concluded the refusal of the Council to rezone was a yielding to demonstrated displeasure at the prospect of many and vocal protestants, was against the weight of the evidence, unsupported by substantial evidence and arbitrary and capricious. We agree with his finding of unsubstantiality of evidence and with his conclusion as to arbitrariness and capriciousness.

In Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, Justice Frankfurter, for the Supreme Court, reviewed the evolution of the substantial evidence rule in federal administrative law into the rule of 'substantial evidence on the record considered as a whole' and construed...